U.S. Board of Immigration Appeals Overturns Advance Parole Travel Protections Under Unlawful Presence Rules

• The Board of Immigration Appeals (BIA) has ruled that travel on advance parole may trigger the 10-year unlawful presence bar, overturning a longstanding immigration precedent.  

Advance Parole Travel Protections 

The Board of Immigration Appeals (BIA) issued a precedential decision in Matter of DelCarmen-Lara, overruling its 2012 decision in Matter of Arrabally and Yerrabelly. The new ruling finds that a departure from the U.S.using advance parole constitutes a “departure” for purposes of the unlawful presence inadmissibility provisions under the Immigration and Nationality Act (INA).  

As a result, foreign nationals who accrued more than one year of unlawful presence before departing the U.S. on advance parole may become subject to the 10-year unlawful presence bar upon seeking admission.  

What Changed? 

For more than a decade, the BIA’s decision in Arrabally and Yerrabelly allowed certain individuals to travel internationally on advance parole without triggering the three- or ten-year unlawful presence bars. 

The BIA has now reversed that position and held that: 

• Travel on advance parole is a “departure” under INA §212(a)(9)(B)(i)(II).  
• The statute does not contain an exception for individuals traveling on advance parole.  
• Individuals with one year or more of prior unlawful presence may trigger the 10-year bar when they depart and seek readmission.  

Prospective Application Only 

Importantly, the BIA determined that this change will apply prospectively because foreign nationals and practitioners have relied on the prior rule for many years.  

The Board stated that the new interpretation represents a significant departure from longstanding precedent and should not be applied retroactively.

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